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We have previously written about a related matter in a blog article discussing Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104 (Wattleup Road 2015). In this article we will provide a brief synopsis of the previous proceedings and the recent application for judicial review in Wattleup Road 2016.

The case concerned an application for judicial review of a report and recommendation made by the State Administrative Tribunal (Tribunal) in 2014 to the Minister for Planning (Minister) (2014 Report). Wattleup Road Development Company Pty Ltd and Primewest Pty Ltd (Applicants) sought to quash the 2014 Report on the grounds that the Tribunal took into account irrelevant considerations and thus erred in law. One particular ground of note was the contention that the precautionary principle was an irrelevant consideration in the determination of an application for subdivision approval pursuant to the PD Act.

The court dismissed the application and affirmed the 2014 Report.

Application to the Tribunal

The Applicants sought approval from the Western Australian Planning Commission (WAPC) for the subdivision of approximately 10.8 ha of land in Hammond Park, located near the Alcoa refinery. The Applicants applied to the Tribunal for review of the deemed refusal (Review).

Call in by the Minister for Planning

After the Review was lodged with the Tribunal, the Minister called in the application and directed the Tribunal to hear the Review and, rather than decide itself, refer it with a recommendation to the Minister for determination. Alcoa of Australia Ltd (Alcoa) was granted leave to intervene in the proceedings.

The Tribunal recommended the application be dismissed and the subdivision application be refused. In making its recommendation, the Tribunal considered and applied the precautionary principle, which is triggered by the satisfaction of two conditions precedent:

a threat of serious or irreversible environmental damage; and

scientific uncertainty as to the nature and scope of the threat of environmental damage.

The Tribunal considered that there was a threat of serious and irreversible environmental damage arising from the impact on the proposed subdivision of dust emissions from the Alcoa refinery, particularly from the residue drying, disposal and storage area: Wattleup Road Development Company Pty Ltd and the Western Australian Planning Commission [2011] WASAT 106 (Wattleup Road 2011).

Appeal

The Applicants instituted an appeal. The Court of Appeal dismissed the appeal on the basis that a recommendation to the Minister is advisory in nature and not a decision to which a section 105(1) appeal applies: Wattleup Road Development Company Pty Ltd v Western Australian Planning Commission [2015] WASCA 104.

Judicial review

The Applicants also commenced proceedings for judicial review of the 2014 Report and recommendations. The preliminary issue regarding whether judicial review was available to the Applicants was answered in the positive in Wattleup Road Development Co Pty Ltd v State Administrative Tribunal [2016] WASC 11. Subsequently, the the Supreme Court dismissed all of the Applicants grounds for review in Wattleup Road 2016. In doing so, the Supreme Court made a number of important points:

in preparing the 2014 Report and recommendation to the Minister, the Tribunal was acting as an administrative tribunal, as such the broad test for jurisdictional error applied;

the purpose of section 3(1)(c) of the PD Act is to ‘promote the sustainable use and development of land in the State’. There is nothing in the PD Act which expressly excludes consideration of the precautionary principle;

consideration as to the sustainable use of land clearly invites consideration of environmental factors;

accordingly, the Tribunal was not in error by having regard to the precautionary principle or how it applied to the facts of the case;

the precautionary principle is to be taken into account in situations where it is assumed that there will be serious or irreversible environmental damage, however this does not necessarily mean that an application must be refused, rather it is one of the factors to consider when a decision maker is deciding how to proceed;

the Tribunal correctly applied the precautionary principle as one of the factors when balancing the planning considerations and considering the matter in the circumstances of the case;

taking into consideration the precautionary principle does not elevate it to a presumption of law. Had the Tribunal done so it would have been in error;

the Applicants proposed conditions on the land title, which notified potential residents of the risk, did not have any effect on such risk manifesting and therefore did not make that risk any more acceptable;

a decision maker is not required to expressly mention every relevant consideration in order to establish that the consideration was taken into account; and

an adverse planning precedent is a relevant consideration, even in circumstances where the application itself is unobjectionable but approval is likely to lead to other developments of similar character, the totality of which would prove objectionable.

Conclusion

The broader implications of this matter relate to the proposed buffer legislation surrounding the Kwinana Industrial area. Given the political nature of these issues and the forthcoming State election it will be interesting to see if the Applicants will appeal the decision or if any final determination will be made by the Minister in the short term.